BZN19 v Minister for Immigration and Citizenship

[2025] FedCFamC2G 1216

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

BZN19 v Minister for Immigration and Citizenship [2025] FedCFamC2G 1216

File number(s):

SYG 1208 of 2019

Judgment of:

JUDGE KAUR-BAINS

Date of judgment:

14 August 2025

Catchwords:

MIGRATION – Costs – application for costs sought above the scale following a final hearing – fixed costs order made

Legislation:

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 22.02(2), 22.09, 29.13(3), sch 2

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 214

Cases cited:

BAX16 v Minister for Immigration and Border Protection [2018] FCA 181

BZN19 v Minister for Immigration and Citizenship [2025] FedCFam2G 1000

ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 658

Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129

Richards v Han (Costs) [2023] FCA 211

Division:

General Federal Law

Number of paragraphs:

15

Date of hearing:

24 July 2025

Place:

Sydney

Solicitor for the Applicants:

Mr P Pahalawela of Parish Patience Immigration Lawyers

Counsel for the Applicants:

Mr L Boccabella

Solicitors for the First Respondent:

Mr A Sharma and Mr Matthew Wong of HWL Ebsworth Lawyers

Solicitor for the Second Respondent:

Submitting appearance save as to costs

ORDERS

SYG 1208 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

BZN19

First Applicant

BZO19

Second Applicant

BZP19

Third Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

ADMINISTRATIVE REVIEW TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE KAUR-BAINS
DATE OF ORDER:	14 AUGUST 2025

THE COURT ORDERS THAT:

1.The Applicants pay the First Respondent’s costs fixed in the amount of $18,200.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE KAUR-BAINS

1. The first respondent, Minister for Immigration and Citizenship (Minister), seeks an order for costs on a party/party basis in the amount of $15,575.44, plus an amount of $1,781.25 to reflect the work to be completed in connection with this application for costs. The Minister also seeks the sum of $4,848.50, as disbursements paid in respect of Counsel’s fees for Mr David Hume of Counsel (Mr Hume), who was retained in relation to this matter. The application for costs followed delivery of my judgment on 2 July 2025 in BZN19 v Minister for Immigration and Citizenship [2025] FedCFam2G 1000, in which the Court dismissed an application for judicial review of a decision made by the Administrative Appeals Tribunal (Tribunal).

2. The applicants opposed the amount sought by the Minister and argued that costs ought to be fixed at the ‘scale’ amount of $8,371.30.

   RELEVANT LAW

3. The Court has a broad discretion to award costs pursuant to s 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), which relevantly provides as follows:

   (2)The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.

   (3)Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.

4. Further, r 22.09 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules) relevantly provides as follows:

   22.09   Costs and disbursements

   Unless the Court otherwise orders, a party entitled to costs in a general federal law proceeding (other than a proceeding to which the Bankruptcy Act 1966 applies) is entitled to:

   (a) costs in accordance with Schedule 2; and

   (b)    disbursements properly incurred

   …

   Note 2: For costs in a migration proceeding, see rule 29.13 and Part 2 of Schedule 2 to these Rules.

5. Rule 29.13(3) of the GFL Rules provides that:

   (3)This rule does not limit a party's right to apply, under Part 22, for an order as to costs of the application.

6. Part 22 of the GFL Rules relevantly provides under r 22.02(2) as follows:

   (2)      In making an order for costs in a proceeding, the Court may:

   (a) set the amount of the costs; or

   (b) set the method by which the costs are to be calculated; or

   (c) refer the costs for taxation under Part 40 of the Federal Court Rules; or

   (d) set a time for payment of the costs, which may be before the proceeding is concluded.

7. Part 2 of Schedule 2 to the GFL Rules contains what is commonly referred to as the Court’s ‘scale’ in relation to migration proceedings. Under Division 1, Item 3 it states that where a proceeding has been concluded at a final hearing, the scale amount is $8,371.30.

8. The usual rule is that costs will be awarded to the successful party in the absence of special circumstances justifying some other order: Richards v Han (Costs) [2023] FCA 211 at [9] per Halley J. In that decision, his Honour said (emphasis added):

   In the ordinary course, in the absence of special circumstances justifying some other order, the general rule is that costs will be awarded to the successful party, that is, costs will follow the event: Summers at [14] citing Ritter v Godfrey [1920] 2 KB 47 at 52-53 (Lord Sterndale MR) and 54 (Atkin LK); Gladstone Park Shopping Centre Pty Ltd v Ross Willis (1984) 6 FCR 496 at 505 (Davies J); Ruddock v Vadarlis (No 2) (2001) 115 FCR 229; [2001] FCA 1865 at [11] (Black CJ and French J).

9. The Federal Circuit and Family Court of Australia has a broad discretion whether to make a fixed sum costs order: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29], per Griffiths J. Fixed costs orders are frequently made by this Court, particularly in migration matters: ENY17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 658 at [40] per Laing J.

10. In Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129, the Full Federal Court (Mortimer CJ, Colvin and Dowling JJ) at [94] made clear that “the question for the Court is, in the particular circumstances proven before it, what is a fair and just amount to fix for the costs of a successful party”.

    PROCEEDINGS BEFORE THIS COURT

11. The application for costs came before me for a hearing on 24 July 2025. Mr Lorenzo Boccabella of Counsel (Mr Boccabella) appeared on behalf of the applicants. Mr Matthew Wong (Mr Wong) and Mr Alvin Sharma (Mr Sharma), solicitors, appeared on behalf of the first respondent.

    CONSIDERATION

12. The Minister relied on the affidavit of Mr Sharma affirmed on 11 July 2025 (Sharma affidavit), which set out the solicitor/client costs incurred by the Minister in the proceedings in the sum of $20,767.25 (excluding GST). The Sharma affidavit also estimated an additional expenditure of $2,375 (excluding GST) in preparing the Sharma affidavit. Further, Counsel’s fees in the sum of $4,848.50 (excluding GST) were sought as disbursements and a copy of Counsel’s tax invoice was attached.

13. The Minister contended that on a party/party basis costs in the total sum of $22,205.19 (being solicitors’ costs in the sum of $17,356.69 and disbursements of Counsel’s fees in the sum of $4,848.50) were sought. The Minister argued that these costs were fair and just for the following reasons:

    (a)The applicants’ first application dated 16 May 2019 for judicial review (applicants’ first application) contained one ground, but twenty-eight particulars were raised. The applicants abandoned most of these particulars. At a late stage in the proceedings the applicants relied on their further amended application dated 3 April 2025. This resulted in the Minister incurring costs in considering the matters set out in the applicants’ first application that were largely abandoned.

    (b)The Court Books contained approximately 1,100 pages, which the Minister needed to produce in relation to the documents that had been before the Tribunal. The Minister needed to consider these documents.

    (c)There were numerous directions hearings in the matter.

    (d)The applicants filed four sets of submissions, being submissions dated 18 March 2025, submissions in reply dated 2 April 2025, further submission in reply dated 15 May 2025 and post-hearing submission dated 10 June 2025. The Minister needed to consider these submissions and file the following submissions, being the Minister’s outline of submissions dated 19 March 2025, outline of further submissions dated 1 May 2025 and post-hearing submissions dated 18 June 2025.

    (e)There were two hearings of the matter which were lengthy, and the second hearing involved Counsel appearing.

14. In the hearing before me, Mr Boccabella, for the applicants, argued that in essence, the Minister was seeking indemnity costs and there was no need for the Court to go outside the scale and the applicants had made reasonable submissions even though the application was dismissed. Mr Boccabella also referred me to page 6 of the Sharma affidavit, which recorded an item for costs for “reviewing application and IAA decision”. Mr Boccabella correctly pointed out that there was no “IAA decision in this matter, as it was a review of the Tribunal’s decision”. Mr Wong said this was a typo, which I accept.

    CONCLUSION

15. I accept that the work undertaken by the Minister is such that it is fair and just to fix costs in the amount of $18,200, which includes $4,848.50 as disbursements paid to Counsel. This is particularly in light of the fact that the applicants amended their application very late in the proceedings to abandon a large part of their case, and that the hearing took place effectively over two days and involved Counsel.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kaur-Bains.

Associate:  

Dated:       14 August 2025